CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT ... - saflii

ACKERMANN AND GOLDSTONE JJ[58] As against this there must be other ways of applying section 39(2) in shapingthe common law generally and in determining specifically the wrongfulness elementof delictual liability for an omission. Our common law of delict spans many centuriesand the debate regarding delictual liability, its elements and their relationship to oneanother, remains lively. Without the benefit of a fully considered judgment fromeither the SCA or the High Court as to whether, from the perspective of the commonlaw, one solution would be better than any other, this Court is at a “gravedisadvantage”in the sense indicated in Bequinot’s case. 61[59] The litigants are also disadvantaged because they have not had the opportunityof reconsidering or refining their respective arguments in the light of a prior judgmentof the SCA. 62This in itself impacts negatively on the Court’s ability to make wise andprudent choices. Moreover, the issue in this case can hardly be described as aninsignificant one, lying at an exotic periphery of the law of delict. On the contrary,the case raises issues of considerable importance to the development of the commonlaw consistently with values of our Constitution.[60] In our view the High Court, possibly because of the way the case was arguedbefore it, misdirected itself in relation to the constitutional requirements of section6162In the passage quoted therefrom in para 50 of this judgment.See Bruce v Fleecytex, above n 44 at para 8.36